Under California Penal Code, if someone uses, possesses or make use of a check with intention to defraud a payee and reveal that intent by representing the check to be genuine, this person could be charged and convicted of check fraud. In the section 476 of California Penal Code established the following rules:
"Every person who makes, passes, utters, or publishes, with intent to defraud any other person, or who, with the like intent, attempts to pass, utter, or publish, or who has in his or her possession, with like intent to utter, pass, or publish, any fictitious or altered bill, note, or check, purporting to be the bill, note, or check, or other instrument in writing for the payment of money or property of any real or fictitious financial institution as defined in Section 186.9 is guilty of forgery."
Examples that could lead a person to a check fraud conviction:
- Using someone's check without authorization and forging the name of the payors.
- Altering the amount of the check.
- Changing the dollar amount of the check.
- Using a fake check.
- Creating a fake check.
To constitute a check fraud in California Penal code, the prosecution must prove the following evidence in court:
- The defendant possessed, made, passed, used, attempted to pass or use a false check, bill, note, or other legal writing for the payment of money or property.
- The defendant knew that the document was false.
- When the defendant possessed, made, passed, used, attempted to pass or use the document, he/ she intended to defraud.
- When the defendant possessed the document, he/she intended to pass or use the document as genuine. "CALCRIM" 1935
Let's explain in details those elements of check fraud for better comprehension. These conditions are essential for someone being convicted of check fraud if the prosecution does not prove these elements, a person should not be convicted of assault. San Diego Criminal Attorney will work to prove the innocence of its clients.
1. Make any type of uses of false check/bill/note
The statute defined as a crime to possess, make, pass, alters, uses or attempt to use a false check or any other type of writing payment. The law is pretty clear and straight, if you even have possession of a false check with intention to use as a payment in the future, you could face a conviction of check fraud in California. Thus, if you commit any all of those actions with intention to defraud a payee, you could face a charge of fraud. In addition, it is important to establish that the statute includes as a crime the uses of not just a fake check, bill, note or any instrument in writing for payment of a debt.
Altered checks or bill
The courts have established that you alter a check when you add, erase or change the check information, in which could cause to be different from its original and the alteration is apparently real and legal effect.
For instance, the most common conduct that constitute alteration or change in California:
- Altering the date of a bill
- changing the dollar amount of the check or bill, adding an additional zero to the check and altering the amount from $10 to $1,000.
Utters the check
The statute considered as a crime the action of utter a fake check. Utters is defined as “use or attempt to use an instrument, whereby or in connection with which a person asserts or represents to another, directly or indirectly, expressly or impliedly, by words or conduct, that the instrument is genuine.” (People v. Jackson (1979) 92 Cal.App.3d 556, 561, 155 Cal.Rptr. 89.) If the defendant tries to use a fake check to pay a debt, she//he could be guilty of fraud, since the law prohibits the attempt to use a fake instrument for purposing of pay a debt.
2. The defendant knew that the document was false
Another crucial element of this crime is the knowledge of the defendant about the fraudulent check. If a person uses or passes a check that is fake, however she/he did not have actual knowledge that the check was fraudulent.
For instance, a doctor who received a check from a patient, but since he had to pay his car loan, he tried to pay the loan with the check that was received from his patient. However, it turns down that the check was fake.
In this case, the doctor should not be guilty of check fraud, since he never had the intent to commit a fraud and he did not know that the check was fake.
Intent to defraud
Under California Law, a conviction for a violation of Penal Code section 476a, subdivision (a), requires a person with the intent to defraud make, draw, utter or deliver a false check for purpose of payment.
Furthermore, in order for a defendant to be convicted of a check fraud, the prosecution must prove to the jury, that the defendant had specific intent to defraud the payee, intent to defraud is when a person has intent to deceive another person out of money or other property. Further, when the crime is a specific intent crime, the results of the conducts are not important to establish a conviction, so long as the defendant had intention to defraud someone with fictitious check is enough to satisfy the crime. For instance, a person created a fake check with intent to make some payments, however, the checks were never used it. In this scenario, the person could be guilty of fraud, since he created a false check and this action is enough to charge someone of this offense.
Moreover, a intention to defraud is "an intent to deceive another person for the purpose of gaining a material advantage over that person or to induce that person to part with property or alter that person's position by some false statement or false representation of fact, wrongful concealment or suppression of the truth or by any artifice or act designed to deceive." People v. Booth (1996) 48 Cal.App.4th 1247, 1253, 56 Cal.Rptr.2d 202.)
Robert uses a check to pay his mortgage knowing at the time there are insufficient funds for its payment, however, there is no fraudulent intent if Robert informs the payee at the time the check is uttered that there are insufficient fund to pay the check and ask to wait for 7 days cash the check.
In this case, Robert could not be guilty of check fraud offense, since he did not have the requisite specific intent to defraud and he had good reason to believe that it will be paid on presentment for payment.
Representing the check as genuine
Finally, if the defendant passess, uses or attempt to use a false check, the prosecution need to prove that the defendant represented the check as genuine. In other words, the defendant needs to use the false check as if it is a real. Further, the representation may be made in an explicit way by words or conduct.
The offense of check fraud could be charged as either misdemeanor or a felony, depending on the facts of each case. That is called wobbler in California, the prosecution has a option to charge the defendant with both crimes depending on the facts of the case.
The misdemeanor identity theft l is punishable by a fine not exceeding one thousand dollars ($1,000) or by imprisonment in county jail not exceeding one (1) year, or both the fine and imprisonment.
However, if someone was charged as a felony, the penalties could be aggravate depending on the facts of the case, a felony is punishable by a fine not exceeding 10 thousand dollars ($10,000) or by imprisonment in county jail not from sixteen (16) months to three (3) years, or both the fine and imprisonment.
A check fraud could be a felony crime in California Law, if a person is convicted with this type of crime, the crime is going to be on the person's criminal records. If you are looking for a job and the employer does a criminal background check and there is a offense register, it is likely that the employer won't hire someone with a felony background. If you were charged with this offense you should promptly look for a Lawyer. San Diego Criminal Attorney has a great deal of success defending our clients and it can help you to build legal defenses that it could be use to contest these types of charges. If you would like more information, please contact our successful our staff to help you with your legal problems.
To contest the charges of this offense San Diego Criminal Attorney would be able to use the following legal defenses:
- No fraudulent intent
One defense that San Diego Criminal Attorney could build for you, is the lack of fraudulent intent, if the defendant did not intent to defraud the victim, he/she should not be guilty of check fraud. If that was your case, our team can build a strong defense to diminish the case or even dismiss the case.
- False accusations
Under the rules of Californa Law, it is too easy for a victim falsely accuse another of committing this crime, sometimes the cause of action is out of anger, revenge or jealousy. However, San Diego Criminal Attorney know how to protect its clients from wrongfully accusations. If this is your case, contact our attorneys promptly.